Speaking the Law (Chapter 4), by Kenneth Anderson and Benjamin Wittes

In chapter 4, the authors discuss the Obama administration’s speeches in response to the NSA revelations made public by Edward Snowden and review the involvement of other branches of government in the legal framework described in the administration’s national security speeches. They explore the degree to which each branch is implicated in major aspects of the administration’s position. They also look at the degree to which the international system and its actors—other countries and international nongovernmental organizations—have had their voices heard, even though outsiders to the government, and have exerted leverage to influence it.

The speeches, likewise, repeatedly push back against congres-
sional efforts to further militarize the confict. David Kris’s
June 11, 2010, speech at the Brookings Institution (“Law
Enforcement as a Counterterrorism Tool”), as we described in
chapter 1, is entirely devoted to defending the use of the civil-
ian criminal justice system—that is, to the non-exclusivity of
law-of-war tools. And both Jeh Johnson in his October 18,
2011, speech to the Heritage Foundation and John Brennan at
Harvard Law School (“Strengthening Our Security by Adher-
ing to Our Values and Laws,” September 16, 2011), likewise
devoted signifcant energy to resisting the congressional urge
to treat counterterrorism as a purely military endeavor.
In other words, far from pushing the boundaries of what
Congress has willed, the administration—in the speeches and
in practice—has resisted the full sweep of the pure confict
model as the legislature has sought to authorize it. The speeches
describe a hybrid confict, one which draws upon multiple—
including non-military—sources of national power. Congress
3. Ibid., § 1022.
4. See Benjamin Wittes, “Initial Comments on the Implementing Pro-
cedures for NDAA Section 1022,” Lawfare, February, 28, 2012, http://www
.lawfareblog.com/2012/02/initial-comments-on-the-implementing
-procedures-for-ndaa-section-1022/.
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SPEAKI NG THE LAW
194
as an institution—notwithstanding members who oppose drone
strikes, insist on closing Guantánamo, and express discomfort
with the signals intelligence activity of the United States—sees
it far less in complicated, hybrid terms. It sees the country as
much less ambiguously and much more plainly at war.
The courts too are, at this point, deeply implicated in the
framework. The Supreme Court accepted in Hamdi that a state
of armed confict existed between Al Qaeda and the Taliban,
on the one hand, and the United States on the other. Writing
for a plurality of the court, Justice Sandra Day O’Connor
stated, “The AUMF authorizes the president to use ‘all neces-
sary and appropriate force’ against ‘nations, organizations, or
persons’ associated with the September 11, 2001, terrorist
attacks.” She consistently discussed the issue of Yaser Hamdi’s
detention in terms of the laws of war. She accepted further that
this armed confict was temporally open-ended: “ . . . we under-
stand Congress’ grant of authority for the use of ‘necessary and
appropriate force’ to include the authority to detain for the
duration of the relevant confict, and our understanding is
based on longstanding law-of-war principles,” she wrote.
5
In subsequent Guantánamo detention cases, the lower
courts have recognized both that this armed confict extends
beyond the hot battlefeld of Afghanistan and that the execu-
tive branch’s authority to use force extends beyond core Al
Qaeda and Taliban forces and includes “associated forces.”
6

For example, in one case, the US Court of Appeals for the
District of Columbia Circuit reversed and vacated a district
court grant of habeas corpus despite the fact that the detainee
5. Hamdi v. Rumsfeld, 542 US 507 (2004).
6. Khan v. Obama, 655 F.3d 20, 21 (D.C. Cir. 2011).
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The Speeches in Interaction with Other Branches of Government
195
in question had been captured in Mauritania, nowhere near
any hot battlefeld, and transferred to US custody.
7
In another
case, the D.C. Circuit affrmed the detention of a petitioner
found to be “part of” Hezb-i Islami Gulbuddin, which it found
to be an associated force of Al Qaeda and the Taliban. In still
other cases, the D.C. Circuit found that Abu Zubaydah’s force
was an associated force of Al Qaeda and that detainees cap-
tured in Abu Zubaydah’s safe houses in urban Pakistan were
subject to detention.
8
The Supreme Court has not granted cer-
tiorari in any Guantánamo cases.
Moreover, the courts have largely accepted the executive’s
view of its international law obligations. While as a domestic
law matter the courts have extended a limited form of habeas
to Guantánamo detainees, neither they nor Congress has done
anything to disturb the executive branch’s long-declared legal
view that the human rights regime contained in, notably, the
International Covenant on Civil and Political Rights does not
bind the US government extraterritorially. So when the US
engages in hostilities against terrorist targets in one place or
another, it is the law of war that applies and not the corpus of
international human rights law that would apply domestically
in times of peace. Moreover, in addition to rejecting the claim
(so well accepted among human rights groups) that no state of
armed confict exists under international law, the courts have
also rejected the claim that hostilities are over for purposes
of either international or domestic law.
9
Christof Heyns, the
UN special rapporteur on extrajudicial, summary, or arbitrary
7. Salahi v. Obama, 625 F.3d 745, 750 (D.C. Cir. 2010).
8. Abdul Razak Ali v. Obama, No. 11-5102 (December 3, 2013).
9. G. Al Bihani v. Obama, 590 F.3d 866, 874 (D.C. Cir. Jan. 5, 2010).
18383-WittesAnderson_Speaking.indd 195 5/15/14 12:39 PM
SPEAKI NG THE LAW
196
executions, can shrug off the US legal view that targeted drone
strikes on Al Qaeda or allied groups are an ongoing, legitimate
response against those who carried out the 9/11 attacks or later
associated themselves to those groups, declaring in a 2012
speech that it’s “diffcult to see how any killings carried out in
2012 can be justifed as in response to [events] in 2001.”
10

However, all three branches of the US government think oth-
erwise. And all three branches have considered legal views and
reasoning for why the United States government has a perfectly
plausible basis on which, even today, to continue hostilities.
To put the matter bluntly, as to the nature of the confict,
the speeches do not simply refect the aspirational views of the
executive branch with respect to either domestic law or inter-
national law. They refect core points on which the three
branches of government have reached a strong consensus and
which broadly draw upon long-standing legal views of the US
government on national security in both domestic and inter-
national law: the United States is in a state of armed confict
with Al Qaeda and its co-belligerents that reaches beyond the
borders of Afghanistan, now and into the indeterminate
future—even though President Obama aspires to wind down
the confict.
Matters are very different with respect to this nation’s
interlocutors in international law, where many countries and
international organizations simply disagree with the whole
international law approach taken by the United States from
September 11 until the present. Many are deeply concerned
10. Owen Bowcott, ”Drone strikes threaten 50 years of international law,
says UN rapporteur,” The Guardian, June 21, 2012, http://www.theguardian
.com/world/2012/jun/21/drone-strikes-international-law-un.
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The Speeches in Interaction with Other Branches of Government
197
that the approach the United States has taken will become
permanently embedded—as we, in fact, urge that it should
become—in the national security legal architecture of the
United States. The depth of unease, even antipathy, toward US
policy has to be understood for what it is: irreconcilable view-
points that often create a ships-passing-in-the-night conversa-
tion that goes nowhere at the glacial pace of “transatlantic
dialogue.” With many of these critics, the starting points
between them and the US government are simply so far apart
that the US government, with all the best will in the world,
cannot bridge the gap. And it shouldn’t try. Seeking to fnd
workable compromises simply shows weakness in these con-
versations and suggests a lack of confdence in the moral and
legal legitimacy of the fundamental framework. It thus serves
as an invitation to move the goal posts and demand more. With
those who reject the propriety of the entire construction of the
confict as warfare, there really is little to discuss.
Yet this does not mean that the international community
has no impact on the framework. The gulf between the United
States and many international actors is nowhere near as dire as
one might think from listening to discussions in the European
Parliament or at academic conferences. For many of the United
States’ allies in NATO and elsewhere, for example, it is pos-
sible to agree to disagree on basic aspects of the framework and
to work together despite having disparate views of what law, if
any, authorizes given steps. Agreement to disagree takes place
at the grand level as to the nature of the confict as a whole,
but it also takes place on narrower legal questions. In some
cases, the disagreement is of suffcient gravity that the other
state—even a close ally like the United Kingdom—will not
participate in certain activities with the United States. In other
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SPEAKI NG THE LAW
198
cases, the disagreement might not rise to this level but might
simply mean that the different countries have different legal
theories as to why their joint activity is proper. In these situa-
tions, which tend to predominate in bilateral relations with
states with which the United States has common counterter-
rorism interests, the US government has a strong incentive
to seek to work out at least policy compromises. And this need
to work with allies creates an ongoing incentive on the part of
the United States to narrow the feld of disagreement where
possible.
The attempt to create as wide a zone of overlap as possible
with other countries produces all sorts of specifc accommoda-
tions to allies and trade-offs with other countries. The Bush
administration released all the British detainees from Guantá-
namo early on because it was important to Tony Blair’s govern-
ment in the period surrounding the Iraq War, to cite only one
example. For present purposes, the more important point is
that the need to fnd practical common ground often affects
the legal framework itself, sometimes profoundly, even on such
macro matters as the nature of the confict itself. The speeches
themselves sometimes refect this impact. For example, in
Brennan’s speech at Harvard Law School, as we noted in chap-
ter 2, Brennan described how European views of “imminence”
in targeting were becoming more fexible, moving toward the
US position, and also how US views of what sort of threat was
required before lethal force was appropriate were evolving
toward the European view that it must be an imminent threat.
In the president’s May 23, 2013, speech on US counterterror-
ism strategy at National Defense University, as we described
in chapter 3, that convergence went further, with the United
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The Speeches in Interaction with Other Branches of Government
199
States adopting “imminence” of threat as a condition for strikes.
More generally, the highly restrictive criteria Obama adopted
in the NDU speech for drone strikes represent an attempt to
alleviate international pressure on the United States by embrac-
ing criteria that, as we have described, would be lawful in
peacetime too, not just during an armed confict. The pressures
that led to these new criteria were predominantly international
pressures—friction with Pakistan and with European allies,
mainly—not domestic ones.
The US view of the nature of the confict, in short, has had
a considerable number of legal infuences. Far from a project
of executive freelancing, it has seen the impact of, and buy-in
from, all three branches of government and signifcant infu-
ence from allies overseas and interest groups domestically.
Surveillance Authorities
As a general matter, the Snowden revelations and the surveil-
lance controversy they unleashed lie beyond the scope of this
volume. For one thing, the story broke as we were nearing the
book’s completion. For another thing, even as of this writing in
mid-2014, the administration has not responded to them using
speeches in quite the same systematic way as it did with respect
to the controversies over drones and targeted killing earlier in
the administration. Other than Litt’s speech at Brookings,
Obama’s at the Justice Department, and a number of testi-
monies by the NSA and intelligence community leaderships,
formal speeches have been relatively sparse. Lisa Monaco,
Brennan’s successor as counterterrorism adviser, gave one at
New York University in November 2013, but largely did not
18383-WittesAnderson_Speaking.indd 199 5/15/14 12:39 PM
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200
address the question of legal authorities.
11
Similarly, NSA
director General Keith Alexander has given a number of
speeches, but these have largely been policy defenses of NSA’s
conduct, not elaborations of legal theories to justify them.
12

The administration, rather, has justifed its policy to a consider-
able degree by doing precisely what it has refused to do with
respect to drones: declassifying large numbers of underlying
legal documents and court opinions and making them available
for the public to evaluate on its own.
At the same time, these document releases have high-
lighted the point Litt made in the speech we quoted at the
beginning of this chapter: the surveillance architecture, like
the nature of the confict, is by no means an executive-only
affair. The two programs that have garnered the lion’s share of
the controversy—bulk metadata collection under section 215
of the Patriot Act and acquisition of foreign communications
content under section 702 of the FISA Amendments Act—
both proceed under statutory authority. While the statutory
authority for the metadata program is controversial, the author-
ity for collection under section 702 is fairly straightforward.
Both programs proceed under the supervision of the FISA
Court. Both have produced signifcant compliance issues,
which have led to energetic FISA Court interventions. And
both programs, as Litt noted, have been repeatedly briefed to
11. Lisa Monaco, address at NYU Law School Center on Law and Secu-
rity, November 19, 2013, http://www.whitehouse.gov/the-press-offce/2013/
11/19/remarks-prepared-del i very-assi stant-presi dent-homel and
-security-and-coun.
12. See, for example, General Alexander’s speech at the Black Hat USA
2013 convention, available on YouTube at http://www.youtube.com/watch?v
=4Sg4AtcW0LU.
18383-WittesAnderson_Speaking.indd 200 5/15/14 12:39 PM
The Speeches in Interaction with Other Branches of Government
201
the intelligence committees of the Congress, and Congress has
reauthorized the authorities twice knowing in some detail how
the government was using them.
More generally, it is simply impossible to argue that the
American surveillance architecture is an under-regulated bas-
tion of executive authority. Indeed, Congress has given the
subject bipartisan and almost neurotic attention over a long
period of time, beginning with the passage of the wiretapping
statute in 1968,

continuing through the FISA in 1978,

the
Electronic Communications Privacy Act in 1986,

major FISA
amendments in 1994, 2001, 2007, and 2008, and numerous
other enactments along the way. While one can fault Congress
in any number of ways for the manner of its regulation of intel-
ligence collection, one cannot reasonably question that it has—
repeatedly, consistently, and over many years—monitored and
adjusted the legal framework at work here and tried to help it
keep pace with technological developments. Notably, the
impact of outside NGOs during many of these legislative
efforts is plainly visible, too. While outside groups like the
ACLU often opposed changes and reforms to the surveillance
architecture, they have sometimes supported changes as well.
The ACLU, for example, was integral to the passage of the
FISA. And its opposition to other aspects of major collection
authorities led to substantial changes in them. For example,
during the debates over the FISA Amendments Act of 2008,
which gave rise to the section 702 authority, opposition from
civil liberties groups to the proposed core authorities prompted
the inclusion of numerous limitations and reporting require-
ments that would not have been in law otherwise.
Congress has, to be sure, left certain areas unregulated in
statute—particularly with respect to intelligence collection
18383-WittesAnderson_Speaking.indd 201 5/15/14 12:39 PM
SPEAKI NG THE LAW
202
against non-US citizens and permanent residents that is con-
ducted overseas. But these were deliberate legislative forbear-
ances, not oversights or executive power grabs. That is, Congress
specifcally chose not to regulate overseas collection against
non-US persons but to leave these areas to governance by exec-
utive order.
13
Notably, Congress in recent years has narrowed
the zone of legal policy it is content for the president to govern
in that fashion. Until 2008, espionage directed at US persons
overseas also fell outside of the FISA. Now, by contrast, Con-
gress and the FISA courts are involved there, too.
14
Generally speaking, the legal architecture of American sur-
veillance has seen little impact from formal international law
mechanisms, but that’s because there really is no international
law of espionage. Unlike the laws of war, which developed in
the international arena, spying is just one of those things that
international law assumes countries will do and leaves to domes-
tic law and the bilateral relationships between international
actors to regulate. The impact of bilateral relationships on the
contours of US intelligence policy is very visible indeed. For
example, the so-called Five Eyes agreement among the United
States, the United Kingdom, Canada, Australia, and New Zea-
land—an agreement which involves a close intelligence-sharing
partnership and a joint agreement not to spy on one another’s
governments—creates a qualitatively different understanding
between the United States and these countries than exists with
other countries, even close allies like Germany and Israel. And
the reaction of countries like Brazil and Germany to NSA sur-
13. This area is regulated by Executive Order 12333.
14. See section 704 of the FISA Amendments Act of 2008, Pub. L.
110-261.
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The Speeches in Interaction with Other Branches of Government
203
veillance led directly to President Obama’s embrace in his
speech in January of new restraints on NSA’s targeting of for-
eign allied leaders—and, more broadly, of the consideration of
privacy concerns in overseas surveillance.
To put the matter simply, the contours of American surveil-
lance law and policy have been set and reset over a long iterative
dialogue among the executive branch, the Congress, the courts,
interest groups, and foreign actors. Responsibility for its con-
tours do not lie exclusively in the intelligence community or,
more generally, in the presidency.
Detaining and Trying the Enemy
At this point, we can say much the same thing about US deten-
tion policy and trial by military commissions, which have both
seen deep involvement from the courts and from Congress.
Detention certainly used to be an exclusively executive affair.
The Bush administration resisted involvement from the courts
and claimed both inherent executive power and power under
the AUMF to detain the enemy. More recently, Congress itself
resisted getting involved and putting its name behind US
detention operations, leaving them almost entirely to the
administration and the courts.
15
There was a time, and it wasn’t
even that long ago, when one could fairly treat detention as an
area of “trust us” executive lawmaking.
But this is no longer the case. While Congress kept itself
out of the fray for a long time, it is now very much in it—erring
15. For a critique of this congressional posture, see Benjamin Wittes,
Detention and Denial: The Case for Candor after Guantánamo (Washington:
Brookings, 2011).
18383-WittesAnderson_Speaking.indd 203 5/15/14 12:39 PM
SPEAKI NG THE LAW
204
these days not on the side of keeping its hands off but on the
side of excessive micromanagement of detainee handling. The
2012 NDAA, as we have seen, authorized detention in general
terms. And Congress has slapped a series of restrictions on
executive handling of detention. It has banned moving detain-
ees to the United States for trial, for example, and it has
restricted transfers overseas to narrow circumstances that made
such transfers all but impossible. More recently, it has relaxed
those overseas transfer restrictions, while retaining those on
transfers to the United States. Notably, the executive branch—
while complaining about the transfer restrictions repeatedly in
the speeches and in various signing statements associated with
the legislation in which they appeared—has respected them.
Indeed, the transfer restrictions have greatly frustrated the
administration’s planned closure of Guantánamo Bay. Yet the
administration has chosen to live with them, effectively acknowl-
edging Congress’s authority over the matter. Congress has even
become involved in regulating military detention outside of
Guantánamo, passing one provision that requires reporting
before releases or transfers from the Bagram Airfeld in Afghan-
istan.
16
At this point, the US detention architecture bears
indelible marks of Congress’s involvement and approval.
The involvement of the courts has been even deeper. Since
the Boumediene decision,
17
the D.C. Circuit, which reviews
the habeas decisions rendered under the authority Boumediene
created, has become the primary articulator of the substantive
16. See Robert Chesney, “The NDAA and Detention in Afghanistan:
Congress Takes a Step Toward Greater Involvement,” Lawfare, December
20, 2012, http://www.lawfareblog.com/2012/12/the-ndaa-and-detention-in
-afghanistan-congress-takes-a-step-toward-greater-involvement/.
17. Boumediene v. Bush, 553 US 723 (2008).
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The Speeches in Interaction with Other Branches of Government
205
and procedural law of detention under the AUMF. In a wide
range of opinions handed down since 2010, the court has
defned the substantive scope of the government’s detention
authority, the rules for the use of hearsay, and the rules for the
construal of evidentiary material admitted.
18
In other words,
much as in the surveillance space, the framework discussed in
the speeches is not one cooked up in the executive branch
alone. It has the assent of Congress and the active involvement
of the judiciary in its substantive formation and creation.
In this area, moreover, the impact of international law and
NGO actors is very clear as well. The United States claims to
be acting within its rights under the Geneva Conventions.
Guantánamo detainees receive visits from the International
Committee of the Red Cross, the offcial arbiter of the conven-
tions, and the ICRC has not challenged the legality of the
detentions there. And while the administration does not accept
the insistence of many human rights groups that detentions at
Guantánamo are unlawful, it does—as we have seen—accept
the normative argument they have advanced that the facility
must close. Current US detention authority, in other words,
refects a diverse set of inputs from sources well beyond the
three branches of government.
The development of military commission trials has followed
a similar trajectory. These were also once promulgated on
executive authority alone. But in the Hamdan decision,
19
the
Supreme Court insisted on a role for Congress in establishing
18. See Benjamin Wittes, Robert Chesney, Larkin Reynolds, et al., “The
Emerging Law of Detention 2.0: The Guantánamo Habeas Cases as Lawmak-
ing,” Brookings, May 12, 2011, http://www.brookings.edu/research/reports/
2011/05/guantanamo-wittes.
19. Hamdan v. Rumsfeld, 548 US 557 (2006).
18383-WittesAnderson_Speaking.indd 205 5/15/14 12:39 PM
SPEAKI NG THE LAW
206
any commissions the executive might use. Modern military
commissions have thus resulted from a complex interaction of
all three branches of government. Since the Hamdan decision,
Congress—under two successive administrations and under
legislative control of both parties—has authorized the commis-
sions in two separate major pieces of legislation. It has also
repeatedly tinkered with the authorizing legislation. The courts,
meanwhile, have reviewed military commission convictions
and, in the process, limited the availability of key charges before
the commissions. Specifcally, D.C. Circuit cases have called
into question whether material support for terrorism and con-
spiracy are available as charges in military commissions on
grounds that they are not traditional offenses under the inter-
national laws of war. This point, in turn, highlights the impact
of international law norms on the development of the architec-
ture the speeches defend. In the military commission system, a
statutorily authorized court’s convictions are being reviewed by
an Article III court that is limiting Congress’s ability to pro-
scribe conduct based on the authority of international law. That
is hardly an example of the executive branch running amok.
Targeting, Drone Strikes, and Secrecy
There really are only two areas in which the executive branch
has insisted on a near-exclusive role. The frst is targeting.
Indeed, if the speeches’ framework as a general matter refects
interactions among the three branches that is more robust than
is generally recognized, targeting represents something of an
exception to the rule.
In his NDU speech, President Obama seemed to give a bit
of ground on the subject of judicial review of targeting, suggest-
18383-WittesAnderson_Speaking.indd 206 5/15/14 12:39 PM
The Speeches in Interaction with Other Branches of Government
207
ing he had “asked my administration to review proposals to
extend oversight of lethal actions outside of war zones” and
discussing the pros and cons of such proposals. This was a
considerable departure from the frst-term speeches, which
had been entirely uncompromising on this point. Targeting,
said Attorney General Eric Holder, Secretary of Homeland
Security Jeh C. Johnson, and several others, is an inherently
executive function. (Holder addressed the issue at North-
western University School of Law on March 5, 2012, as did
Johnson, who at the time was general counsel for the Depart-
ment of Defense, in his February 22, 2012, address at Yale
Law School, “National Security Law, Lawyers, and Lawyering
in the Obama Administration.”)
The administration then took the view that there is no role
for the courts in targeting decisions outside the territorial
United States, whether in advance or after the fact—even in
cases involving a US citizen. The role of Congress is limited to
oversight through secret reports to the intelligence committees
or to the armed services committees. Beyond that, the Obama
administration said, on any of the legal framings of this con-
fict, targeting with lethal force is inherently and exclusively an
executive function. Notably, the administration has not fol-
lowed up on the NDU speech by endorsing any proposal to
“judicialize” any aspects of targeting. So on this matter, the
Obama administration does sound—with the exception of
Obama’s own 2013 speech—remarkably like the early Bush
administration. Targeting with lethal force abroad runs not just
to the executive generally, but to the constitutional functions
most associated with it: the commander-in-chief power, the
power to protect national security and defense, and the power
to conduct foreign relations.
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208
Moreover, the administration contends that only the exec-
utive has the specialized, dedicated agencies and agents able
to perform this inherently discretionary and probabilistic task
well; the nature of defending the country through force requires
executive focus and the expertise of military and national secu-
rity personnel acting in a highly coordinated way that no other
branch of government can do. What’s more, the act of the
courts playing Monday morning quarterback will inevitably
damage the ability of the executive to make the best decisions
in an uncertain environment in real time. Congress always has
political avenues by which to rein in a president whose adven-
tures exceed the legislature’s appetite; the courts, for their part,
have developed a long history of deference and refusal to get
involved, particularly with decisions for how force is to be used,
when, how, and against whom.
If all of this sounds like just so much unilateral executive
policymaking, there are two important considerations to take
into account. The frst is that to the extent one conceives of the
confict as a true armed confict pitting the United States
against a belligerent force and governed by the law of armed
confict, the Obama administration’s view of the matter has a
solid foundation in law. Targeting in this confict is not, in
principle, any different from targeting in any other confict in
which the United States has engaged in the past. It is always
an executive affair. The military, of course, must respect the
international law of war, even when engaged in hostilities with
an unlawful and criminal belligerent, and it must follow par-
ticularly the law of targeting in armed confict. But as we have
explained, those laws—particularly as the Obama administra-
tion understands them—give capacious ground in which to
operate. Notably, they do not call for judicial review of, or
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The Speeches in Interaction with Other Branches of Government
209
statutory foundation for, targeting decisions. It is noteworthy
that in one of the earliest speeches setting out the administra-
tion’s legal framework, Harold Koh made reference to the tar-
geting of Admiral Yamamoto during World War II in his March
25, 2010, address to the American Society of International
Law (“The Obama Administration and International Law”).
The Obama administration, in other words, is not shy about
seeing its targeting decisions in this confict as similar to target-
ing decisions in any other war, nor is that an eccentric view
Second, to the extent the judiciary has played no role in
targeting, that is at least in signifcant degree because it has
affrmatively declined to get involved in the matter. The ACLU
offered the courts the opportunity to get involved in the Anwar
al-Awlaki targeting before the drone strike that killed him,
but US District Judge John Bates declined, arguing both that
al-Awlaki’s father—whom the organization represented—had
no standing to bring the action and that targeting was a politi-
cal question from which the courts had to abstain in any
event.
20
After the strike, the ACLU reformulated the case as a
wrongful death action
21
under Bivens;
22
Judge Rosemary Collyer
dismissed that.
23
At this stage, however, there is no evident
20. See Al-Aulaqi v. Obama, No. 10-1469 (DDC Dec. 7, 2010).
21. See complaint in Al-Aulaqi v. Panetta, No. 12-01192, fled July 18,
2012.
22. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcot-
ics, 403 US 388 (1971).
23. See opinion in Al-Aulaqi v. Panetta, No. 12-01192, fled April 4, 2014.
For an account of the oral argument before Judge Collyer, see Raffaela Wake-
man and Jane Chong, “A Recap of Friday’s Oral Arguments in Al-Aulaqi v.
Panetta,” Lawfare, July 19, 2013, http://www.lawfareblog.com/2013/07/a-recap
-of-fridays-oral-arguments-in-al-aulaqi-v-panetta/.
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interest on the part of the federal courts in reviewing targeting
judgments.
The fact that the courts have not involved themselves in
targeting activities so far refects the fact that the situations
involved have been plausibly presented as part of an armed
confict abroad—the least likely case for a court to insert itself,
either at the front end or the back. This creates a genuine odd-
ity with respect to detention, where even foreigners held at
Guantánamo are entitled to at least some form of habeas and
judicial review. If one targets such combatants with lethal force
instead of merely capturing them, however, the judicial posture
is utterly different. It is entirely understandable that the ACLU
and human rights groups would take the view that it is impor-
tant to have at least the same level of judicial scrutiny on tar-
geting people as would exist were the target captured instead
of killed. Yet it seems unlikely that the judiciary will in the long
run insert itself into targeting decisions made abroad, unless
brought into the process by statute, though it may take a cer-
tain amount of lower-court tumult to establish this point frmly.
Similarly, Congress is playing in this area more or less the
role it wants to play. The intelligence committees of both
houses of Congress have been kept informed in detail on drone
strikes. The Senate Intelligence Committee chair, Dianne
Feinstein, has expressed her confdence in the drones program
and has described the information she has received about it.
24

24. See Dianne Feinstein’s website, “Feinstein Statement on Intelli-
gence Committee Oversight of Targeted Killings,” news release, February
13, 2013, http://www.feinstein.senate.gov/public/index.cfm/press-releases
?ID=5b8dbe0c-07b6-4714-b663-b01c7c9b99b8. Feinstein said, “The com-
mittee has devoted signifcant time and attention to targeted killings by
drones. The committee receives notifcations with key details of each strike
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The Speeches in Interaction with Other Branches of Government
211
Indeed, only relatively recently has the question of drone
strikes really been live within Congress and even then less
because of any actual drone strikes than because of the hypo-
thetical possibility of a domestic strike against a US citizen.
The killing of al-Awlaki raised few eyebrows in the legislature.
While the congressional left wing and the Rand Paul wing of
the Republican right in 2013 did raise the issue with new
strength, it did not arise with the kind of strength necessary
actually to legislate limits on the authority to use drones to kill
foreign terrorists.
There is certainly room for more robust congressional over-
sight of this process. In an ideal world, we would see legislation
reforming the intelligence oversight statutes to refect a range
of activities that are currently pushed into a “covert” or “not
covert” binary. These activities probably ought to have a broader
spectrum of different reporting and oversight requirements.
The connections and interrelationships with the US military—
Joint Special Operations Command (JSOC) particularly—and
the reporting and oversight processes to the armed services
committees ought to be reformed as well. As of this writing,
some positive steps have been taken on this fnal matter. Rep.
Mac Thornberry has introduced reasonably good legislation
addressing the reporting of JSOC activities to the armed services
shortly after it occurs, and the committee holds regular briefngs and hear-
ings on these operations—reviewing the strikes, examining their effective-
ness as a counterterrorism tool, verifying the care taken to avoid deaths to
non-combatants and understanding the intelligence collection and analysis
that underpins these operations. In addition, the committee staff has held
thirty-fve monthly, in-depth oversight meetings with government offcials
to review strike records (including video footage) and question every aspect
of the program.” Feinstein also complained about the lack of access to Offce
of Legal Counsel memoranda.
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SPEAKI NG THE LAW
212
committees.
25
Congress has also become involved to try to force
the administration to release the Offce of Legal Counsel (OLC)
memos that underlie drone strikes. This came up particularly
during the Brennan confrmation as director of the CIA.
But all of this operates at the level of oversight, reporting,
and articulating in domestic law the increasingly important
relationships between the military and JSOC, on the one hand,
and the CIA, on the other. What Congress has not tried to
do—and in our judgment should not try to do—is to codify in
statute the law of targeting. Congress cannot possibly intervene
usefully to defne matters of targeting that rest upon interpreta-
tions of the international law of war. The law of war has to
remain as a specialized body of law, a source of professional
formation and identity for the professional military, defned
through its lawyers, the members of the Judge Advocate Gen-
eral’s Corps, and their interactions with foreign counterparts
both in practice and in negotiations.
In short, the posture of both other branches of government
in this area is one of informed and self-conscious abstention.
If the courts and Congress have been marginalized in the law
of targeting, they have both been very willing partners in their
own marginalization.
There is one other area in which the executive branch has
insisted assiduously on its own primacy, and that is secrecy. The
Obama administration talks a good game about secrecy, but it
generally has been mostly talk in that realm. At least until the
25. See H.R. 1904, introduced May, 9, 2013, sponsored by Rep. Mac
Thornberry (R-Texas), referred to House Armed Services Committee. See
http://thornberry.house.gov/legislation/sponsoredlegislation.htm for text,
cosponsors, and progress
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The Speeches in Interaction with Other Branches of Government
213
Snowden affair, it did very little actually to open up and certainly
kept major disclosures as matters of its sole discretion.
The Snowden episode changed that somewhat in two ways.
For one thing, it forced signifcant disclosures and declassifca-
tions by an administration that suddenly had to respond to an
onslaught of allegations. More fundamentally, however, it also
caused the administration to contemplate in a serious way sub-
mitting to legislation that would require a great deal more pub-
lic disclosure of data and documents concerning FISA-related
matters. Indeed, all major reform proposals, including those the
administration backs, would require signifcant new disclosures.
As of this writing, no such legislation has passed, but the mere
fact of its contemplation with administration blessing marks
something of a change.
It’s also a notable exception to the more general rule,
which is that the Obama administration—like virtually all
administrations—wants to decide for itself, in the exercise of
its own discretion, what material to make public. And it has
shown no particular appetite for the courts or the Congress or
the international community imposing new obligations of dis-
closure upon it.
Conclusion
The broad point here is that the framework the speeches elu-
cidate is not narrowly the Obama administration’s doctrine of
the confict—though the speeches often present themselves
that way and certainly have been received that way by a great
many commentators. In important respects, rather, they refect
a broader articulation of the state of American law vis-à-vis the
confict, an articulation that actually speaks for the other two
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SPEAKI NG THE LAW
214
branches of government as well and incorporates in important
respects the viewpoints of allies and even critics of the frame-
work. It thus, we believe, is likely to have strong legs—the legs
of a great deal of policymaking, legislation, court decisions, and
international negotiation. The framework will, of course, con-
tinue to evolve. But we suspect it will prove much more dura-
ble than those who blithely call for an “end of the confict” may
expect.
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